Saturday, May 20, 2017

As White House Counsel, McGahn Seen Failing in Role

Rod Rosenstein took a major hit to his previously unblemished reputation by lending support as deputy attorney general to President Trump's decision to fire FBI director James Comey. Now, a lawyer who works right outside Trump's office is similarly taking hits to his admittedly somewhat checkered reputation. Don McGahn, Trump's pick to be his White House counsel, is now being blamed for what a wide range of legal observers are calling the ethical and legal disarray in the Trump presidency.
McGahn now serves in the same behind-the-scenes role that John Dean occupied in the Nixon White House and used to warn Nixon, in vain, about the "cancer" on his presidency. Like Dean before him, McGahn has a client with a tin ear as to ethics and conflicts issues. Even so, legal observers say McGahn has to bear responsibility for such seemingly avoidable missteps as the delayed firing of Michael Flynn as national security adviser and the clumsy explanations for Comey's dismissal.
"So much of what’s gone wrong in the Trump administration . . . might have been prevented by some good lawyering up front," reporter Jenna Greene wrote in a story for the on-line legal publication Litigation Daily with the provocative headline "The Case for Giving White House Counsel Don McGahn the Boot" [May 18]. "The president, no doubt, is an extraordinarily difficult client," Greene added, "but McGahn doesn’t seem willing or able to rein him in."
McGahn came to the post as an expert on campaign finance and election law based in part on a combative five years as a Republican appointee to the Federal Election Commission (FEC). Back in private practice with the well-connected D.C. law firm Jones Day, McGahn gained entree into Trump's inner circle by becoming one of the first high-profile Washington lawyers to join the campaign. McGahn was credited with playing an important role in blocking efforts to block Trump from the ballot in New Hampshire's first-in-the-nation presidential primary early in 2016.
As White House counsel, McGahn fits a Trumpian model of high-level appointments. For secretary of education, Trump picked Betsy DeVos, a sharp critic of public education as a leader of the school-choice movement. To head the Environmental Protection Agency, he named Scott Pruitt, an opponent of EPA policies as a former Oklahoma attorney general.
At the FEC, McGahn had a reputation of being rude and abrasive to staff and even to fellow commissioners and worked single-mindedly to weaken or dismantle campaign finance restrictions. Ann Ravel, a Democratic appointee to the FEC after McGahn's term had ended, commented to Greene that she found McGahn's appointment as White House counsel "shocking." "His record indicates that he’s not particularly concerned about conflicts or ethics issues," Ravel told the reporter.
As early as mid-February, Jack Goldsmith, who headed the Justice Department's Office of Legal Counsel during part of President George W. Bush's second term, was blaming McGahn for some of the White House problems. “The multiple ethics problems swirling around the White House are squarely McGahn’s responsibility,” Goldsmith, now a professor at Harvard Law School, wrote in a post for the middle-of-the-road legal blog Lawfare.
Within the past week, the New York Times strengthened the critique by disclosing that McGahn was informed on Jan. 4 that Flynn, who was already functioning as Trump's national security adviser, was under an FBI investigation for his contacts with the Russians during the campaign and his work as a paid lobbyist for the Turkish government. Matthew Miller, a Justice Department spokesman in the Obama administration, responded critically to the information in an appearance on CNN. "If you were under an FBI investigation," he said of Obama administration personnel policies, "you couldn't get hired as a staff assistant, much less national security adviser."
Once Flynn's role emerged into headlines, the White House used McGahn, just as it was to use Rosenstein later, to try to defend its actions--in this case, the failure to fire Flynn immediately after learning that Flynn had lied to Vice President Mike Pence about contacts with Russians. "The White House Counsel reviewed and determined that there is not a legal issue, but rather a trust issue," press secretary Sean Spicer said at a briefing.
Accepting that account, Goldsmith wrote in his blog post that McGahn had failed in his role. "The legality of Flynn’s actions was not McGahn’s call to make," Goldsmith wrote, "and if McGahn were properly carrying out his responsibilities to ensure lawful action in the White House and to minimize law-related political damage to the President, he would have acted differently."
Goldsmith's critique was noted in an unflattering profile by reporter Nancy Cook in Politico in February. “McGahn will embolden Trump,” an unnamed former FEC official told Cook. “He is not going to be a truth teller. He’s going to be an enabler.”
Rosenstein, the former federal prosecutor and Justice Department official, salvaged some of his reputation last week by appointing former FBI director Robert Mueller as special counsel to investigate "Russiagate." McGahn's reputation is likely to suffer more hits as his role draws more attention. He can protect his reputation, if at all, only by showing more moral courage than he has to date in telling a wayward president to try to straighten up.

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Kenneth Jost is author of Supreme Court Yearbook and Supreme Court From A to Z (both CQ Press) and Trending Toward #Justice. He graduated from Harvard College and Georgetown University Law Center, where he is an adjunct professor. He is a contributing writer with CQ Researcher and was a member of the CQ Researcher team that won the 2002 American Bar Association Silver Gavel Award. His articles have appeared in national and legal publications; he also appears as an analyst on national and local radio and television news programs.

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